Relevance
What is the standard for logical relevance under FRE 401?
Evidence is logically relevant if it has any tendency to make a material fact of consequence more or less probable than it would be without the evidence.
What are the two general qualifications a witness must satisfy to testify?
(1) The witness must have personal knowledge of the matter; and
(2) the witness must declare — by oath or affirmation — that they will testify truthfully.
What is the purpose of "refreshing recollection," and is the item used admitted into evidence?
Any writing or item may be shown to a witness to jog present memory. The item is a memory aid only — it is NOT admitted into evidence. The witness testifies from their refreshed memory, not from the document.
What is the general standard for authenticating any piece of evidence?
The proponent must introduce sufficient evidence to support a finding that the item is what the proponent claims it to be. Authentication is a threshold showing — the ultimate question goes to the jury.
State the general rule of the Best Evidence Rule (original document rule).
To prove the CONTENTS of a writing, recording, or photograph, the original document (or a reliable duplicate) must be produced. A duplicate is admissible unless the original's authenticity is genuinely questioned or it would be unfair.
Under FRE 403, what triggers exclusion of otherwise relevant evidence?
The court may exclude relevant evidence when its probative value is substantially outweighed by danger of: unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needlessly cumulative evidence.
When are leading questions permitted on direct examination?
Leading questions on direct are allowed when:
(1) cross-examining a witness;
(2) examining a hostile witness;
(3) covering introductory/preliminary matters; or
(4) the witness has difficulty understanding.
What rights does opposing counsel have when a writing is used to refresh a witness's recollection?
Opposing counsel may:
(1) inspect the writing;
(2) cross-examine the witness about it; and
(3) introduce relevant portions of the writing into evidence.
How is real (physical) evidence authenticated?
By testimony establishing the item's identity, OR by establishing a substantially unbroken chain of custody showing the item is in substantially the same condition as when originally obtained.
When is the Best Evidence Rule NOT triggered?
The rule does not apply when:
(1) the witness testifies from personal knowledge, not from the document;
(2) the contents of the writing are not what is at issue; or
(3) the matter is collateral (not closely related to a controlling issue).
True or False: A court may exclude evidence under FRE 403 simply because it is prejudicial.
FALSE. The danger must SUBSTANTIALLY outweigh the probative value. Ordinary prejudice is not enough — the rule favors admissibility.
What three requirements must lay opinion testimony satisfy to be admissible?
(1) Rationally based on the witness's own perception; (2) helpful to the fact-finder in understanding the testimony or determining a fact in issue;
(3) NOT based on specialized, scientific, or technical knowledge.
What four requirements must be met for past recollection recorded to be admitted?
(1) Witness once had personal knowledge of the facts; (2) witness now has insufficient recollection to testify fully;
(3) the writing was timely made and adopted as accurate by the witness;
(4) the record accurately reflects the witness's knowledge when made.
What are "self-authenticating" documents, and name two examples.
Self-authenticating documents prove themselves — they require no extrinsic evidence of authenticity. Examples: certified official/public records, newspapers and periodicals, notarized documents, and commercial paper.
Name three exceptions that allow other evidence when the original is unavailable.
(1) Original lost or destroyed (not by proponent's bad faith);
(2) original not obtainable by judicial process;
(3) opponent had the original, knew it was needed, and failed to produce it;
(4) the writing concerns a collateral matter.
List all five dangers that can trigger exclusion under FRE 403.
(1) Unfair prejudice;
(2) Confusion of the issues;
(3) Misleading the jury;
(4) Undue delay / waste of time;
(5) Needlessly cumulative evidence.
What four requirements must be met for expert opinion testimony to be admissible?
(1) Assists the trier of fact;
(2) the expert is qualified by knowledge, skill, experience, training, or education;
(3) opinion stated to a reasonable degree of certainty (no guessing);
(4) based on a proper factual basis using reliable methods reliably applied.
What is the critical difference between "present recollection refreshed" and "past recollection recorded"?
Present recollection refreshed: document jogs memory → witness testifies from memory → document NOT admitted.
Past recollection recorded: memory remains insufficient even after viewing → the document ITSELF is admitted and read to the jury as a hearsay exception.
What are the three methods for authenticating handwriting?
(1) Lay witness with non-litigation personal knowledge of the handwriting;
(2) expert witness comparing to a genuine exemplar;
(3) jury comparison of the document with a known genuine sample.
What is the standard for taking judicial notice of an adjudicative fact?
The fact must NOT be subject to reasonable dispute because it is:
(1) generally known within the community; OR
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
What is the distinction between "relevance" and "competence" of evidence?
Relevance = whether evidence makes a material fact more or less probable.
Competence (authentication) = whether the evidence is what the proponent claims it to be.
An item can be relevant but still inadmissible if not competently authenticated.
What one subject is an expert witness prohibited from opining about in a criminal case?
An expert may NOT opine on whether a criminal defendant had the requisite mental state (intent) for the crime charged — that ultimate mental-state issue is reserved for the jury.
Under the past recollection recorded rule, which party may offer the record as an exhibit?
Only the ADVERSE (opposing) party may introduce the record as an exhibit. The proponent may only read it aloud to the jury — the proponent cannot offer their own witness's past recorded recollection as a physical exhibit.
What three requirements must be met to authenticate an ancient document?
(1) The document is at least 20 years old;
(2) its condition creates no suspicion about authenticity (no obvious alterations or irregularities);
(3) it was found in a place where it would likely be kept if genuine.
How does the effect of judicial notice differ between civil and criminal cases?
Civil cases: the jury MUST accept the noticed fact as conclusive — it is binding.
Criminal cases: the jury MAY (but is not required to) accept the noticed fact as conclusive — the defendant's constitutional right to jury fact-finding is preserved.